This week on NVTC’s blog, Alex Castelli of NVTC member CohnReznick shares how the SEC’s adoption of new crowdfunding rules could be a game changer for growth-focused businesses and investors.

The SEC’s adoption of new crowdfunding rules could be a game changer for growth-focused businesses and investors

On Oct. 30, 2015, the SEC approved final rules that permit companies to offer and sell securities through crowdfunding. The new rules provide another capital raising option for growth-oriented companies and offer additional options for investors who want to get in on the ground floor of in what could be a very successful business.

Benefits to Companies and Investors

Some of the key benefits of the SEC’s rules permitting crowdfunding or, simply put, the ability of companies to raise capital from the general public through the Internet are listed below.

Early-stage and growth companies that may be unable or unwilling to raise capital from institutional or private investors have access to another source of capital.

By offering and selling equity in their company through the Internet, companies gain a wider and more efficient distribution of the offering to a larger audience when compared to traditional sources.

Using the Internet to offer and sell securities should decrease the cost of capital

Non-accredited individual investors, previously excluded from equity crowdfunding investments, are now invited to become investors with certain limitations.

Investors have a level of protection since companies raising capital through crowdfunding will be required to utilize funding portals or registered broker dealers and will have certain disclosure requirements to investors. Additionally, funding portals that wish to participate in the crowdfunding process as an intermediary will be required to register with the SEC and become a member of FINRA.

Launching Your Crowdfunding Campaign

Even if you are a tremendously successful owner or executive, a successful crowdfunding effort will require expert marketing surrounding your efforts to raise funds. You and the members of your management team will assume the responsibility of formulating a marketing campaign to create interest in your offering. You’ll need a good story to tell investors complete with business plans, financial statements and projections.

In the crowd, you’ll be competing for investment dollars with other companies so you need to engage in strategies to elevate your offering over all others. Earning the trust and confidence of investors can lead to a successful offering. Consider activities that could strengthen your relationships with clients, customers, and even vendors. These relationships may help to support a successful crowdfunding campaign and could represent your future investors.

To launch your crowdfunding campaign, you’ll be using the services of an SEC registered broker/dealer or SEC registered crowdfunding platform or funding portal. Each will probably offer different services and fee structures. Once your customers, clients, and vendors have invested in your business, you may want to reach out to a broader base of potential investors. Getting your offer in front of the right investors will be critical to achieving your capital raising goals.

As a private company, you may not be accustomed to sharing operational and financial information publically. A successful crowdfunding campaign may require additional transparency if you are to build trust and confidence in prospective investors. If you are not comfortable sharing company information with the world, you may want to explore a more proprietary method of raising capital.

Once you have executed a successful crowdfunding campaign, you will need to have a plan on how you will continue to communicate to your new investors. How much information are you willing to share? Which rights to information will investors have? Consider creating an investor-only section on your company’s website where you can post periodic information about your company’s progress, financial results, etc. Transparency is the key if you want to keep your investors informed and hungry to make additional investment in the future.

This week on NVTC’s blog, NVTC Small Business and Entrepreneur Committee Chair Norm Snyder and his colleague Andrew Newton, both of Aronson LLC, share highlights from the committee’s November event, Positioning Your Company for Acquisition, showing how a good company is bought, not sold.

On October 21, 2015, NVTC sponsored a panel of experts to discuss the topic “Positioning your Business for Acquisition”. The panel included Larry Davis, a partner in Aronson Capital Partners; Dana Duffy, the CFO of Invincea; Michael Pratt, serial entrepreneur and managing partner & co-founder of Select Venture Partners LLC; and Mark Spoto, managing director at Razor’s Edge Ventures. The event was moderated by Committee Chair Norm Snyder, lead partner in Aronson’s Technology Industry Services.

The panelists spoke to a number of questions from the moderator and members of the audience. Topics covered included timing of selling a business, including initial planning; how to minimize due diligence headaches; how to find potential buyers and the need to find more than one possible suitor; and the characteristics of potential acquisitions that potential buyers typically consider.

A significant discussion involved how long in advance a company should start planning for acquisition, with a general consensus that it varies. The panelists gave examples ranging from acquisition planning beginning six months before closing to as far out as nine years. All of the panelists emphasized that an entrepreneur should always be preparing for an acquisition in an orderly way and should reevaluate possible exit strategies at each inflexion point during the life of the business. This built into another theme common throughout discussions: sell your business while it is on its way up, not on the way down. By constantly evaluating exit strategies, especially exit timeline, an entrepreneur can weigh the benefits and costs to each exit strategy at different times during the life of the business so as to not miss a good opportunity, which may be affected by external factors such as the state of the economy, as well as internal factors such as company performance

Another big topic was how companies can minimize the headaches of due diligence work. Again there were multiple answers to this question. The panelists focused on the benefits of having quality, competent advisors throughout the life of the business. One panelist, who had been a key management member in selling several companies, stressed the importance of making important investments in administration during the life of the business as the costs of not doing so may be far greater near the time of sale if significant regulatory, compliance, tax or accounting issues emerge during the due diligence. Panelists noted that some key areas where companies can get themselves in trouble are trying to draft legal documents without an attorney, not saving electronic copes of all signed legal documents, not paying payroll taxes when due, not complying with federal, state and international tax rules (including sales taxes), not having necessary IP legal protection and by not ensuring proper accounting treatment of transactions from day one, especially for complex areas such as revenue recognition. Problems (and surprises) that arise during due diligence can reduce prices, delay closings or even kill deals.

As for valuation, the panelists stressed the importance of being able to demonstrate continuing revenue streams. One time sales are great but all of the panelists spoke to how a company that can demonstrate year over year revenue streams will be more attractive to potential buyers. The other piece to valuation was context, and in particular, the fact that entrepreneurs to ask what their company can bring to a potential buyer. In many cases a smaller company being acquired is merely a rounding error on the acquirer’s financial statements, and the attraction is the potential of the acquiree’s products or technology, including synergies with the acquirer’s existing lines of business. A key concern of the acquirer is damage to its reputation, e.g. in the event of non-compliance with regulations or a law suit. The panel emphasized the need for depth, rather than breadth in the value the potential acquiree can add to the buyer’s business. The overall conclusion was that those entrepreneurs who best determine how their companies can add value to a potential buyer, are most likely to sell, and sell at a good price.

This week on NVTC’s blog, Elizabeth Harr of Hinge Marketing discusses 12 signs that it’s time for your technology company to rebrand.

Your technology firm’s brand is your most valuable asset. But many firms don’t make effective use of their brand or — worse — don’t have a well-developed brand in the first place.

To begin, let’s discuss just what your technology firm’s brand is all about. Branding is a large concept, but can be broken down into a fairly simple and digestible equation:

Your brand = Your reputation x Your visibility

Your brand is the totality of how your audience sees, talks about, and experiences your firm. This combines everything from your firm’s visual branding—like your logo and web design—to each idea, strategy and interaction you use to connect with prospects and clients.

Yet having a strong brand isn’t just about making your firm more recognizable to potential clients. In addition, a well-developed brand can help your technology firm accomplish the following:

Attract clients more easily by generating more qualified leads and closing more sales

Attract potential future business partners

Command higher fees than competitors with weaker branding

Attract top talent to work at your firm

Set a higher standard for the daily operational performance of your firm

But despite all these advantages, if you’re like many technology firms, you’ve probably been able to grow without having a well thought out brand development strategy. Your growth has come fairly naturally, thanks to your referral network and the acquisition of a few major contracts.

However, this passive strategy is rarely sustainable over time. To continue growing or to accelerate your growth, it’s time to start making your firm’s brand work for you.

12 Signs It’s Time for Your Technology Firm to Rebrand

If you think your technology firm may be ready for a rebrand, but you aren’t quite sure, here are 12 questions you can ask yourself to help make your decision:

Are you getting fewer leads than in the past?

When your leads begin decreasing, it may be a good sign that your brand is no longer resonating with prospects. Rebranding can help your firm appeal to your audiences.

Are you entering a new market?

Entering into a new market is the perfect time to start fresh with a new brand. You can reestablish the strength of your brand alongside your new competitors.

Are you introducing new services?

When your firm goes through a significant change, you want to make sure your brand still reflects your firm’s new focus. If it doesn’t, it may be the perfect time for a rebrand.

Has your firm’s growth slowed or stopped?

This could be an indicator that it’s time to switch things up with a stronger and more carefully developed brand that clearly communicates your expertise and capabilities.

Have new competitors entered the marketplace?

A changing marketplace and new competition may mean your current branding will no longer do the trick. Undergoing a rebrand can help you stand up to changing demands.

Does your visual brand look tired compared to the competition?

If all of your competitors have moved forward with a strengthened brand, you don’t want to be left behind. Your firm’s visual branding elements (like your name, logo, tagline, and colors) communicate your brand and should be reviewed periodically for updates and consistency.

Do you struggle to describe how your firm is different?

Having a specialty or something to differentiate your firm from the competition is an important part of connecting with your target audience. A well thought out brand is the first step is portraying what makes your firm special.

Are you losing a higher percentage of competitive bid situations than in the past?

This is a strong indicator that it’s time to make a change. Measuring your current success against past victories can provide valuable insight into how your firm is continuing to grow.

Has your firm changed significantly since you last adjusted your brand?

Growth and change are inevitable—just make sure your brand continues to grow and evolve along with your firm.

Are you struggling to attract top talent?

In order to be a top technology firm, you need to have top talent working for you. If a weak brand is keeping your firm from attracting top employees, it might be time to rebrand.

Have your clients changed considerably?

You originally developed your brand with a specific client base in mind. And now those clients have changed. Their challenges and needs might have changed — and they may be searching for service providers differently. Your firm’s brand should change with them.

Are you trying to figure out how to take your firm to the next level?

If you’ve been asking yourself how you can accelerate your firm’s growth or reach the next level of your potential, a fresh rebranding could be the right place to get started.

If you nodded along to questions on this list, then you have your answer: it’s time for a rebrand. While it may initially be a challenge to get your firm executives and decision makers on board for your rebrand, an honest assessment and clear-cut plan can help overcome any initial internal reluctance. It may seem like a lot of work at first, but the benefits of rebranding will be well worth it.

Elizabeth Harr is a partner at Hinge, a marketing and branding firm for professional services. Elizabeth is an accomplished entrepreneur and experienced executive with a background in strategic planning, brand building, and communications. She is the coauthor of The Visible Expert, Inside the Buyer’s Brain, How Buyers Buy: Technology Services Edition and Online Marketing for Professional Services: Technology Services Edition.

This week on NVTC’s blog, Jim McCarthy of member company AOC Key Solutions Jim McCarthy of member company AOC Key Solutions shares suggestions for not only surviving, but also thriving amidst the occasional dysfunction in government contracting.

When you win, government contracting is among the most satisfying of careers. Unfortunately, the crucible we call a Proposal Center can, at times, degenerate into a witches’ brew of dysfunction. One where there exists a dark confluence of long hours, suboptimal working conditions, relentless deadlines, hidden agendas, political infighting, rampant egos, intractable issues, morose review teams, cranky bosses, and cold pizza. No wonder proposals sometime magnify the worst in us. But, when handled correctly, dysfunction can also spark the finest in us. Here are suggestions for not only surviving, but thriving, amidst the occasional toxicity endemic to Government Contracting.

1. Be a Part of the Solution, Government Proposals are hard enough. Commit from day one not to be part of the problem. Be part of the solution—a breath of fresh air in the war room. Offer constructive suggestions. Be a problem solver, not a problem compounder.

2. Regard It As an Opportunity to Learn. Get metaphysical. Discern why you are going through this time of adversity and testing. What lesson are you being taught? Be open.

3. Remember the Mission. Your company is bidding an important contract. By helping it win, you help your company help others. Take solace that you are part of something worthwhile that matters.

4. Focus on Positives, Not Negatives. Radiate enthusiasm. Don’t be a black hole absorbing all light and energy from the proposal. Count continuously the things going right.

5. Help a Colleague. Make it about others, not you. Volunteer. Help those sharing the foxhole with you. Look for another person—perhaps younger than you, and commit to making him or her a success. Helping others animates even the most grueling proposal.

6. Support Your Boss. Under pressure? Imagine what confronts your leader. Help ease the hard times squeezing the boss. Be loyal. Give the boss the benefit of the doubt. Speak highly of him or her.

7. Don’t Take It Personally. Problems are endemic to life, business, and proposals. Check your ego at the reception desk. Be objective rather than internalizing the dysfunction.

8. Examine Yourself First. Before playing the blame game, reflect on how you may be part of the problem. Anger, resentment, frustration, and finger-pointing are infectious. Often, we are most critical of others in the very areas where we are weakest.

9. Change What Is Under Your Control, Accept the Rest. Stress and worry contribute not one iota to solving anything. Fix what you can. Change how you think about everything else. Shifting one’s attitude typically brings about altered behavior.

11. Take the Pause That Refreshes. As you near a crescendo or breaking point, leave. Take a walk. Grab a cup of coffee. Sit in your car. Breathe. Use a quick break to center yourself. Once renewed, rejoin the fray and redouble your efforts.

12. Maintain Work Life Balance. You cannot perform your best when you feel your worst. Diet, exercise, spirituality, family involvement, quiet time, hobbies, reading, healthy sleep habits—first take care of yourself. Only then are you equipped for the proposal grind.

13. Set a Good Example. People are watching you. You are either a good role model or a bad one. It really does come down to the choice you make.

14. Sweat Not the Small Stuff. And, as author Richard Carlson says on occasions, “it’s all small stuff.”

15. Invoke Your Pressure Release Mechanism. Tamp down on the valve to discharge steam when needed. Keep your outlook positive, not pressurized. If you don’t have a release mechanism, find one.

16. Act Gently and Cultivate Empathy. Never pile on. Don’t tread on those are already weighed down. Lighten another’s load. Observe your teammates, allies, critics, and rivals–you may think you know what they are going through, but you don’t. Like you, everyone is on a private journey with rocky patches. Everyone stumbles—if not today, then soon. Be an encourager.

By applying these suggestions, you emerge from adversity, stronger, more resilient, and better equipped to handle the next challenge. Surely, it will come—not if, but when.

Jim McCarthy is the Founder & Principal of AOC Key Solutions, a proposal consulting firm dedicated to helping companies win government contracts. Mr. McCarthy’s career spans over 30 years of proposal development, market strategy, and oral presentation coaching to federal contractors. Learn more at www.aockeysolutions.com

This week on NVTC’s blog, Jim McCarthy of member company AOC Key Solutions shares how small businesses can gain a market foothold, offset vulnerabilities, obtain site knowledge, open doors to a larger key personnel pool, or spread risks and bid costs through teaming. McCarthy provides ten keys to developing contracting relationships.

Instances of the “lone wolf” pursuit of a government contract by a single prime contractor are vanishing. Today, multi-company teaming arrangements are more the rule than the exception. Companies now team to gain a market foothold, offset vulnerabilities, obtain site knowledge, open doors to a larger key personnel pool, or spread risks and bid costs.

For small businesses (SBs) especially, a teaming arrangement may be the most viable strategy for growth and prosperity. Too often, however, despite best efforts, SBs fail to land on a team. Or worse perhaps, lacking leverage as they cut deals with the prime that are just empty promises. What is a SB to do?

Try these 10 keys to small business teaming:

Isolate on a primary need of the agency. This requires diligent research and early market intelligence.

Establish a relationship with the customer with the need. Persistence and patience are paramount to gain face time.

Get smarter about the need than anyone. Invest time and energy to do your homework.

Devise and package a solution to meet the need. Solve the problem. Provide the features of your plan, but be sure to focus on customer benefits. Test-drive your plan with the customer.

Hit the streets to spark interest. Contact every potential prime interested in the opportunity. For bait, tell the prime that you alone have the solution to the customer’s pain.

Set the hook. Forecast how you can earn the prime N number of evaluation points by solving the customer’s problem. Be bold yet credible.

Gain leverage. Hint at your solution — but give details only in exchange for a place on the team. But not just any place. Insist on precise terms in writing — a set scope of work (“swim lane”) with a guaranteed level of effort contingent upon contract award to your prime. Be prepared to walk. If one prime will not play ball, go to another.

Offer something else value-added. Deliver a subject matter expert to help with the proposal. At no cost, prepare 100 percent compliant proposal text for your swim lane. Cover your own B&P costs. Participate for free on color review teams. Offer a candidate key person for bidding. Fund your transition costs if the team is successful.

Sign your deal. Not just a handshake, but get the terms and conditions in writing. Execute non-disclosure agreements and non-competes.

Deliver. Don’t forget to circle back to your original customer to inform him/her that you will be delivering your solution as part of [name of prime contractor]‘s powerful team. Then meet your commitments just as you would expect the prime to meet its promises.

There is no free lunch. Give something of value to get something of value. Appeal to the best competitive instincts of the primes. Deliver what counts: as a team member present additional evaluation points that make the difference in winning. In so doing, not only do you meet a primary need of the government, but you earn (and deserve) a legitimate place at the team table.

Jim McCarthy is the founder and principal of AOC Key Solutions, a proposal consulting firm dedicated to helping companies win government contracts. Mr. McCarthy’s career spans over 30 years of proposal development, market strategy, and oral presentation coaching to federal contractors. Learn more at www.aockeysolutions.com

For more information on what NVTC has to offer for small businesses and entrepreneurs, check out the NVTC Small Business and Entrepreneur Committee. The committee hosts various programs, including a yearly teaming and contracting event for small companies interested in government contracting. At the event, small businesses can discuss partnering or subcontracting with large companies and meet with government agencies and their small business offices from the federal, state and local level about how to do business with them.

This week on NVTC’s blog, member company Venable shares “Calculation of Annual Receipts, Recertification Requirements, and Service-Disabled Veteran-Owned and HUBZone Small Business Regulations,” part four of their five part series on the SBA’s Proposed Rules to Implement the 2013 NDAA. This post focuses on SBA’s proposal to exempt acquisitions valued between $3,000 to $150,000 from the nonmanufacturer rule.

The SBA is proposing to exempt acquisitions valued between $3,000 to $150,000 from the nonmanufacturer rule. The nonmanufacturer rule is an exception to the limitations on subcontracting for small business set-aside supply contracts. In essence, if the small business awardee cannot perform 50% of the cost of manufacturing the items on its own, the nonmanufacturer rule allows a small business that is engaged in the wholesale or retail trade to supply the items as long as they are manufactured by a small business in the United States. By exempting all acquisitions valued between $3,000 to $150,000 from the nonmanufacturer rule, agencies will be permitted to purchase supplies from small business resellers on a set-aside basis without regard to the size of the manufacturer or the location of manufacturing.

The SBA’s stated intent is to incentivize small business set-asides by eliminating the need to request waivers from the nonmanufacturer rule, which the SBA suggests would delay the procurement by several weeks. The SBA believes that agencies will be more likely to set aside an acquisition valued between $3,000 to $150,000 for small businesses if they do not have to request a waiver from SBA if no small business manufacturers are available. Given that agencies are already required to set aside acquisitions valued between $3,000 and $150,000 for small businesses pursuant to Section 15(j) of the Small Business Act, however, it is unclear how a permanent “waiver” as envisioned in the proposed rule will meaningfully increase the number of small business set asides. While the proposed rule would appear to streamline a process that is already taking place, such as routine waivers for brand name computers, it may also have an unintended adverse impact on small businesses. By eliminating the nonmanufacturer rule for these smaller acquisitions across the board, the SBA may actually incentivize the acquisition of supplies manufactured by large businesses and/or those outside of the United States – through a small business prime contractor – using multiple, individual contracts not exceeding $150,000 since these acquisitions would be exempt from the nonmanufacturer rule. In such a scenario, the majority of the economic benefit of the “small business” contract would flow to the large manufacturer.

Under existing requirements, per FAR 19.502-2(c), a waiver is only obtainable when no small business manufacturers are available. In contrast, under the proposed rule, a small business would be permitted to supply the items of a large business or non-domestic manufacturer irrespective of whether small business manufacturers in the United States are available.

In addition to this proposed change, the proposed rule includes several changes to the regulation governing waivers. Included among them is a provision that would allow agencies to execute a waiver for an individual contract both after proposal submission and after contract award, if an in-scope modification requires the delivery of supplies that cannot be sourced from a domestic, small business manufacturer.The Bottom Line: What You Should Know

The proposed changes to the nonmanufacturer rule would exempt awardees of small business set-aside supply contracts valued between $3,000 and $150,000 from the current requirement that they source from domestic small business manufacturers. While the stated aim is to encourage the use of small business set-asides, the new rule may actually result in greater utilization of large business manufacturers.

Contractors wishing to submit comments on these proposed rules can do so through regulations.gov by searching for RIN: 3245-AG58. Comments are due by February 27, 2015.

This week on NVTC’s blog, member company Venable shares “Calculation of Annual Receipts, Recertification Requirements, and Service-Disabled Veteran-Owned and HUBZone Small Business Regulations,” part three of their five part series on the SBA’s Proposed Rules to Implement the 2013 NDAA. This post focuses on Calculation of Annual Receipts, Recertification Requirements, and changes to the Service-Disabled Veteran-Owned (SDVO) and HUBZone Small Business regulations.

A Change to the Calculation of Annual ReceiptsThe proposed rule seeks to amend 13 CFR § 121.104, which sets forth the requirements for calculating annual receipts when determining the size of a business. The revision to the rule is to clarify a perceived misinterpretation that the current definition did not require the inclusion of passive income. The SBA explicitly provides that this had never been the intent of the SBA. Indeed, the SBA explains in the preamble to the proposed rule that “the only exclusions from income are the ones specifically listed in paragraph (a) [of Section 121.104]. It was always SBA’s intent to include all income, [including passive income].”Contractors should be aware that the SBA is not merely proposing a clarification to its size status regulations, but also signaling an interest in how contractors are calculating their annual receipts. Contractors should be prepared to detail their calculation of annual receipts in anticipation of potential increased SBA scrutiny.

A New and Notable Recertification Requirement
Currently the small business rules require small business concerns to recertify their size within 30 days following a merger or acquisition, per 13 CFR § 121.404(g). However, the SBA seeks to amend this provision by adding language that requires small business concerns subject to a merger or acquisition that occurs after an offer has been submitted but before award, to recertify their size with the contracting officer prior to award.This change is notable and could have a significant impact on small business concerns. As many government contactors know, awards can be delayed for any number of months, for varying reasons that have nothing to do with the offering entities. However, under this new rule, if a small business concern – or its affiliate – is subject to a merger or acquisition, the concern could disqualify itself from the award, which may have been scheduled for award many months before, perhaps well before the transaction was even contemplated. Such a rule would seem to have an unfair impact on growing small business concerns.

SDVO and HUBZone Changes
The SBA also proposes a few changes to the SDVO and HUBZone programs. For example, in order to comply with the changes to the limitations on subcontracting requirements (as addressed in Part 1 of this series), both the SDVO (13 CFR § 125) and the HUBZone (13 CFR § 126) programs include proposed changes to their respective regulations that will require SDVO and HUBZone concerns to represent that they will comply with the limitation on subcontracting requirements.
The proposed changes to the SDVO program also clarify that:A joint venture of at least one SDVO SBC and one or more other business concerns may submit an offer as a small business for a competitive SDVO SBC procurement, or be awarded a sole source SDVO contract, so long as each concern is small under the size standard corresponding to the NAICS code assigned to the procurement.Thus, an SDVO small business can form a joint venture with another non-SDVO small business to submit an offer as a joint venture, and the joint venture still will qualify as an SDVO small business, provided that all members of the joint venture meet the size standard for the procurement.Submitting Comments: Contractors wishing to submit comments on these proposed rules can do so through regulations.gov by searching for RIN: 3245-AG58. Comments are due by February 27, 2015.

This week on NVTC’s blog, member company Venable shares “Performance Requirements and Small Business Contracting,”part two of their five part series on the SBA’s Proposed Rules to Implement the 2013 NDAA. This post focuses on identity of interest, size protests, NAICS appeals, and certificates of competency.

Identity of Interest

The SBA’s proposed rule clarifies what constitutes an “identity of interest” leading to affiliation. The current regulation states that affiliation arises when two or more people or entities “have identical or substantially identical business or economic interests.” The proposed rule specifies in more detail that “firms owned or controlled by married couples, parties to a civil union, parents and children, and siblings are presumed to be affiliated with each other if they conduct business with each other.” This presumption is rebuttable, and can be overcome by demonstrating a “clear line of fracture.” Notably, under the proposed rule, types of familial relationships other than those specified expressly do not lead to a presumption of affiliation.The SBA also proposes a presumption of identity of interest by virtue of economic dependence if a concern derives at least 70% of its receipts from another entity. The current rule does not specify an exact percentage that leads to economic dependence, and the SBA believes that this additional guidance will offer greater clarity. The proposed rule indicates that this presumption can be rebutted, for example when a new entity has only received a few contracts.

The Bottom Line: What You Should Know

Contractors should carefully evaluate and track their existing relationships to ensure unintended affiliations have not arisen. The proposed rule also offers significant additional guidance to contractors moving forward, by specifying exactly what familial relationships and percentage of economic dependence lead to a presumption of affiliation. Contractors should bear in mind, however, that even if their business relationships do not trigger a presumption of affiliation via identity of interest, the SBA still considers affiliation under a totality of the circumstances; other factors, therefore, could still lead to a finding of affiliation.

Size Protests

The SBA’s proposed rule would redefine the parties that have standing to file a size protest. The proposed change refines the language to allow “[a]ny offeror that the contracting officer has not eliminated from consideration for any procurement related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range,” to bring a size protest. According to the SBA, the “intent is to provide standing to any offeror that is in line or consideration for award,” but bar protest by offerors that have been eliminated for reasons unrelated to size.

Additionally, the SBA proposes to add a regulatory provision authorizing the SBA’s Director, Office of Government Contracting, to initiate a formal size determination in connection with eligibility for Service-Disabled Veteran-Owned as well as Women-Owned and Economically-Disadvantaged Women-Owned small business concerns.

The Bottom Line: What You Should Know

Under the proposed rule, contractors will have more clarity as to the circumstances under which they may bring a size protest. The proposed rule is explicit that entities eliminated from a competition for procurement related reasons do not have standing to initiate a size protest. Moreover, contractors should be aware that the SBA Director, Office of Government Contracting, may initiate a formal size determination.

NAICS Appeals

The SBA has requested comments on the appropriate timeline for filing a NAICS code appeal. Currently, a company must serve and file an appeal from a contracting officer’s NAICS code or size standard designation “within 10 calendar days after the issuance of the solicitation or amendment affecting the NAICS code or size standard.” This current rule was designed to work within procurements where offerors have 30 days from the date the solicitation is issued to submit an offer. However, in light of the fact that the 30-day window is not applicable to all procurements, and that NAICS code appeals are frequently decided within days of the procurement closing, the SBA is analyzing whether the rule is adequate for those procurements that do not require offerors to submit offers within 30 days after the solicitation is issued.

To determine an appropriate timeline, the SBA intends to consider the following factors:

How much time does the contracting officer need to amend the solicitation and notify interested parties of the pending NAICS code appeal?

How much time is needed for an interested party to draft and file a response to the NAICS code or size determination?

How much time is needed by the Office of Hearings Appeals to review the record and determine whether the NAICS code assignment “is based on a clear error of fact or law and issue a decision?”

In addition, the SBA seeks comments on what impact a NAICS code appeal should have on a solicitation. The current regulations require a contracting officer to “stay the solicitation.” The SBA seeks comments on whether the regulations should be amended to state that the contracting officer or the agency should delay the response date for the bid or offer.

The Bottom Line: What You Should Know

Contractors should continue to monitor this provision to see whether the timelines for a NAICS code appeal are amended. If there ultimately is a change, contractors must ensure that appeals and any comments thereon are timely.

Certificates of Competency

The SBA proposes to amend the Certificate of Competency (COC) Program where an apparently successful offeror for an IDIQ task order or contract is found non-responsible due to its financial capacity. Under the proposed change, if a contracting officer finds an offeror for an IDIQ task order or contract non-responsible due to its financial capacity, the SBA Area Director would review the concern’s “maximum financial capacity.” Should the Area Director issue a COC, it will be for a specific amount that sets the limit of the firm’s financial capacity for that contract. While the proposed change permits a contracting officer to exceed this amount, it prohibits the contracting officer from denying the firm an award based on financial grounds if the firm has not reached the identified capacity limit set out in the COC.

The Bottom Line: What You Should Know

Under the proposed rule, small businesses must take reasonable steps to ensure that they can readily demonstrate a high maximum financial capability. If a COC is issued that establishes the firm’s maximum financial capability, companies should monitor their financial capacity so that they are in a position to persuade the contracting officer to exceed the financial capacity limitation, or ensure that they do not pursue a task order that might put them over their identified financial capacity and potentially render them ineligible for contract award.

Submitting Comments

Contractors wishing to submit comments on these proposed rules can do so through regulations.gov by searching for RIN: 3245-AG58. Comments are due by February 27, 2015.

This week on NVTC’s blog, member company Venable shares “The Limitation on Subcontracting and Small Business Subcontracting Plans,”part 1 of their five part series on the SBA’s Proposed Rules to Implement the 2013 NDAA.

The current limitation on subcontracting rule, or the “50 percent rule,” requires small business prime contractors on set-aside services contracts to incur no less than 50 percent of the cost of performance for labor. A similar methodology applies to materials and construction contracting. To implement requirements of the 2013 NDAA, the SBA proposes to alter the rule as follows:

No more than 50 percent of the amount paid by the government to the prime may be paid to firms, at any tier, that are not similarly situated, and in addition

Any work that a similarly situated entity subcontractor further subcontracts to an entity that is not similarly situated will count toward the 50 percent subcontract amount.

A similar 50 percent limitation applies to the amount paid by the government for supply contracts; a 15 percent limitation is applied to the amount paid by the government for construction contracts.

Accordingly, under the new rule a small business prime is barred from subcontracting more than 50 percent of the amount paid by the government under the prime contract, unless a subcontract is to a similarly situated entity, i.e., a subcontractor with the same small business program status as the prime contractor. Thus, a HUBZone small business prime contractor can subcontract to another HUBZone small business subcontractor without it counting toward the 50 percent limitation. That HUBZone small business prime contractor, however, will have to count a subcontract to a woman-owned small business toward the 50 percent limitation, because it is not a similarly situated entity.

The SBA has gone a step further from Congress. The 2013 NDAA focused only on prime contractor restrictions. This limitation, however, could allow a similarly situated subcontractor – to which the 50 percent limitation does not count – to further subcontract some or all of the value of its contract to a large business. Thus, on a $100,000 set-aside, a HUBZone small business prime contractor could subcontract $75,000 of the amount paid by the government to another HUBZone small business. That subcontractor, in turn, could subcontract some – or all – of its subcontract to a large business. The SBA proposes to block that loophole by imposing limitations to contractors at any tier, and specifies that subcontracts to entities that are not similarly situated will count toward the rule’s limitations. This would bar the HUBZone small business subcontractor in the example above from subcontracting too much work to a large business subcontractor.

The wording of the proposed new rules also would dramatically simplify the methodology for determining how the percentage of subcontracting is calculated. For both services and supplies, the percentage is calculated simply as a percentage of the amount paid by the government to the prime. This is a substantial change from the current calculation methodology, as services contractors who have spent time and effort determining the “cost of contract performance incurred for personnel” will attest.

The SBA has proposed significant penalties for small business prime contractors that misrepresent compliance with the rule. Those penalties include imprisonment for up to 10 years, and a fine that is the greater of $500,000 or the dollar amount spent in excess of the permitted levels for subcontracting.

The Bottom Line: What You Should Know

Under the SBA’s proposed rule, small business primes must be vigilant in tracking the amount of work subcontracted throughout their subcontracting chain, particularly the work subcontracted by similarly situated entities. Failure to keep track of subcontracting could result in the contracting team exceeding the 50 percent limitation on subcontracting without the prime contractor’s knowledge, and risk an accusation that the prime misrepresented compliance with the rule.

Small Business Subcontracting Plan Requirements

The SBA proposes to toughen up requirements pertaining to small business subcontracting plans, which could have significant consequences for large business prime contractors.

Reporting Fraudulent Activity or Bad Faith: The SBA proposes to allow small business concerns and commercial market representatives (CMRs) to report fraudulent activity or bad faith behavior by large business prime contractors with respect to their subcontracting plans. Reports would be made to the SBA’s Area Office where the firm is headquartered.

Strengthening Corrective Action Plans: Large business prime contractors failing to provide a written corrective action plan after receiving a marginal or unsatisfactory rating for their subcontracting plans will be subject to material breach of contract, which will be considered in the contractor’s past performance evaluation.

Data Collection and Reporting: The SBA proposes to require agencies to collect, report, and review data on the extent to which each contractor meets its goals and objectives as set out in subcontracting plans.

This proposed rule, coupled with the recent rule allowing small business subcontractors to communicate directly with contracting officers about a lack of payment, will affect how large business prime contractors and their small business subcontractors interact. Failure by a large business prime contractor to reconsider a strained relationship with a small business subcontractor could lead to an allegation of fraudulent activity or bad faith with respect to small business subcontracting plan compliance. This proposal by the SBA leaves no recourse for the prime contractor to respond to allegations of fraudulent activity or bad faith, which could have significant adverse effects for contractors.

The Bottom Line: What You Should Know

Under the SBA’s proposed rule, large businesses must be aware of increasing scrutiny about small business subcontracting. The SBA’s proposed rule does not specify that any of the data collected on its subcontracting plan will be limited. Therefore, representations as to plan compliance under one contract must be consistent with plan compliance under another contract, or a large business prime runs the risk of allegations of making false statements to its agency customers.

Submitting Comments

Contractors wishing to submit comments on these proposed rules can do so through regulations.gov by searching for RIN: 3245-AG58. Comments are due by February 27, 2015.